Sub judice contempt, a lesser-known branch of the law of contempt of Court, has been recently invoked in Singapore. But is an area of law developed in the context of jury trials still relevant for a bench trial jurisdiction like Singapore?

Singapore and the Relevance of Sub Judice Contempt of Court 

In the age of social media and instantaneous communication, it has been never easier to comment on current affairs. Court cases, perhaps because of their high-profile defendants or controversial issues, have received their fair share of online commentary. Just this year, an online furore erupted over what really happened at a scuffle at a Thaipusam procession; previously, there was quite the debate over the constitutional challenge to s 377A of the Penal Code.¹ In all these cases, the Attorney-General’s Chambers (“AGC”) released media statements warning the public against making statements that infringe the law of sub judice contempt.²

But what is sub judice contempt exactly? Little in the way of guidance has been provided in the AGC’s various press releases, even in the most recent one. This commentary will thus attempt to shed light on the purpose and rationale of the law on sub judice contempt. It will explain why the AGC’s press releases were perhaps unhelpful in providing guidance to the public, with the result that the public may have an inaccurate impression of how the sub judice rule is applied. More importantly, this commentary will consider whether the law of sub judice contempt has any relevance in Singapore, given its origins as a rule to protect jurors from prejudicial material. 

What is Sub Judice Contempt?

Sub judice contempt deals with statements or publications made about a case whilst proceedings are still being heard.³ Anything published during this period that poses a “real risk of prejudice” to the proceedings amounts to sub judice contempt.⁴ This is supposed to ensure that accused persons are only tried on the basis of evidence before the Ccourt.⁵ As most common law jurisdictions conduct jury trials for criminal proceedings, there was a concern that unfavourable media publicity might cause jurors to pre-judge the accused even before the proceedings start, thus violating the accused’s right to a fair trial.⁶

What amounts to a “real risk” of prejudice is generally a fact-specific enquiry,⁷ assessed with reference to the fact-finder.⁸ In the UK, sensationalist reporting that vilified the accused was found to amount to sub judice contempt: the Court held that tabloid newspapers which alleged that the accused was a sexual pervert who delighted in raping young girls might prejudice the jury from delivering a fair verdict.⁹

For bench trials, however, it is clear that such reporting would not amount to sub judice contempt. Courts have vigorously maintained that professional Judges are expected to, and do, remain unaffected by prejudicial material.¹⁰ By dint of their professional training, Judges are expected to refrain from being improperly influenced by media comment, and to decide cases on the admissible (and relevant) evidence adduced before them.¹¹ This sentiment has been accepted locally, albeit obiter.¹² Indeed, it has been noted that since it would be Judges themselves who would be pronouncing on their peers, they would hardly acknowledge that they could be influenced by any sort of extraneous influence.¹³

An example of what would not amount to sub judice contempt is the local case of Re Lau Swee Soong. A student protestor claimed that radio broadcasts by the Ministry of Interior and Defence prejudiced his impending trial for a rioting offence because they identified him as a participant in the riot.¹⁴ The Court held that there was no real risk of prejudice, because all the Government did was to give a factual report.¹⁵ Furthermore, nothing in the broadcast referred specifically to the applicant or his pending trial.¹⁶   

Uncertainty in the Law of Sub Judice Contempt in Singapore? 

With one local case and guidance from common law jurisdictions, one might have thought that the law on sub judice contempt in Singapore would be, if not entirely settled, at least somewhat clear on the boundaries of permissible speech. Instead, there are signs that both the public and the legal fraternity are uncertain as to what amounts to sub judice contempt. 

On 3 November 2014, Parliament was to have heard questions about an altercation that occurred at Hong Lim Park. Several protestors had disrupted a YMCA charity carnival, and were later charged for causing public nuisance. Their lawyer wrote to Parliament and requested that it refrain from discussing anything related to that incident, on the basis that legal proceedings against his clients were pending and anything said about the case contravened the sub judice rule. As explained in a previous commentary, however, this view was inaccurate: sub judice contempt does not encompass any and all speech related to pending legal proceedings.¹⁷ Nonetheless, Parliament acceded to this (legally inaccurate) request.

During the annual Thaipusam procession in February 2015, several men got into a scuffle with the police for playing musical instruments, an act prohibited under the permit granted for the procession.¹⁸ The arrests sparked off a flurry of online comments, most of it critical: some people thought that the ban on musical instruments was unjustified,¹⁹ while others alleged that the police provoked the fracas by behaving aggressively.²⁰ Seemingly in response to accusations that were flying fast and furious, the AGC released a media statement to warn the public from making comments that infringe the sub judice rule.²¹ Immediately, local media ran stories with headlines like “AGC warns against public or online comments on Thaipusam incident” and “AGC reminds public to refrain from making comments related to 3 men charged in Thaipusam incident”.²² Needless to say, the online hubbub died down in short order.

Admittedly, these headlines did not accurately reflect the true tenor of the AGC’s press release. On the other hand, it is highly unlikely that laymen could have appreciated that the AGC was merely restating the test for sub judice contempt, rather than warning against making any statements whatsoever on the Thaipusam incident. As the AGC has made such media statements previously,²³ one would have thought that some guidance as to what sort of speech is permissible would have been provided. Stating the test for sub judice contempt without context fails to aid comprehension (what does “calculated to affect the judicial process” mean?), and may in fact create the wrong impression that all comment on pending cases is disallowed. Free speech is not absolute, of course, but people should be free to speak their minds so long as no laws are infringed.

Is Sub Judice Contempt Relevant in the Context of a Bench Trial Jurisdiction like Singapore?

Given the underlying uncertainty regarding the application of sub judice contempt, perhaps the time has come to consider whether it has any place in Singapore. Singapore, after all, abolished juries for criminal trials in 1969,²⁴ and there is no reason why a rule premised on juror frailty should continue to hold sway in a bench trial jurisdiction. 

What falls afoul of the sub judice rule tends to be inadmissible evidence according to English evidence law, like the publication of an accused’s previous convictions or confessions.²⁵ However, it is well established that such exclusionary rules of evidence do not apply in Singapore; the Evidence Act admits any evidence that falls under one of the relevancy provisions,²⁶ and previous convictions can be admitted if they are shown to be “relevant”.²⁷ Singapore case law is also quite clear that that what is traditionally thought to be “prejudicial evidence” will not influence the mind of a professional Judge.²⁸ Hence, even if a popular tabloid publishes the history of an accused’s past convictions, it would be exceedingly hard to argue that a pending trial might be influenced in any way. There would be no “real risk of prejudice”, precisely because Singapore Judges are required to evaluate facts and arguments objectively.²⁹

It has been suggested that the sub judice rule might be useful in preventing what is known as “trial by media”,³⁰ which is thought to be undesirable because it reduces public confidence in the due administration of justice by showing that the Court’s function can be usurped by another party.³¹ One example of this is the UK case of Attorney-General v MGN Ltd: several newspapers ran a serious of vicious articles on a man accused of murder, demonising him and portraying him as guilty even before he was charged.³² In the end, someone else confessed to the crime; an innocent man was, for all intents and purposes, tried and sentenced in the court of public opinion. 

Sub judice contempt could arguably be used to prevent a similar situation from happening in Singapore. After all, in this age of social media, information can be disseminated instantly to the entire world with the mere click of a button.³³ Given Singaporeans’ proclivity for online vigilantism,³⁴ it is probably only a matter of time before an accused who has yet to face trial ends up bearing the full brunt of a social media campaign aimed at bringing him down. However, in order to prove sub judice contempt, the prosecution would still have to show that there is a “real risk” of prejudice, something that would be very hard to do in the context of Singapore. Given that no case of sub judice contempt has ever been successfully prosecuted in the context of a bench trial in the UK,³⁵ it is hard to imagine what sort of publication may fall afoul of the sub judice rule in Singapore. 

Furthermore, prosecuting the media for contempt in such an example may be a case of too little too late. That the newspaper publisher in MGN Ltd was found guilty of contempt and fined was probably of little comfort to the man whose name became a byword for depravity. A far more effective remedy may be an injunction to prevent publication of such articles, but this may be a question for Parliamentary legal reform. In any case, it should be noted that certain statutes allow for restraining orders to prevent publication of certain types of statements. Under s 10(1) of the Sedition Act,³⁶ the Public Prosecutor can apply to Court to prohibit the circulation of publications which promote hostility between different races, and under s 9(1) of the Maintenance of Religious Harmony Act,³⁷ the Minister may make a restraining order against person who incite or instigate feelings of ill-will between different religious groups. Thus, should an accused person ever be maligned on the basis of his race or religion, steps can be taken to prevent the publication of such statements. For all other situations, however, there appears to be a lacuna in the law.   

Conclusion

This article is, of course, not meant to be an exhaustive review of the relevance of sub judice contempt. Rather, what it hopes to do is provide clarification on an area of law that has unfortunately been misunderstood in recent times. The law of sub judice contempt was meant to uphold the right to a fair trial, not to constrain public opinion or act as a gag on free speech. Perhaps the time has come to consider if sub judice contempt should be retained as part of the law of contempt of Court in Singapore

► Sui Yi Siong*
    Harry Elias Partnership LLP
    E-mail: [email protected]

*LL.B (Singapore Management University). The views expressed in this article are the author’s own. 

Notes

1 Cap 224, 2008 Rev Ed.

2 See Sui Yi Siong, “Sub judice contempt of court in Singapore and the way forward” [2014] 32 Sing Law Review 121, pp 133-136 for a quick summary of these events. 

3 Sub judice is generally translated as Latin for “under judicial consideration”.

4 R v Duffy, ex parte Nash [1960] 2 QB 188 at 195-196. The “real risk” test was later endorsed in Shadrake Alan v Attorney-General [2011] 3 SLR 778 at [42].

5 ATH Smith, “Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper” (Crown Law Office, 18 April 2011) at para 2.5.

6 Ian Cram (ed), Borrie and Lowe: The Law of Contempt (LexisNexis, 4th edition, 2010) at para 5.1.

7 Attorney-General v BBC and Hat Trick Productions Ltd [1997] EMLR 76 at 81.

8 Geoffrey Robertson & Andrew Nicol, Media Law (Penguin, 5^th edition, 2008) at para 7-010. 

9 Attorney-General v Associated Newspapers Ltd [2012] EWHC 2029 (Admin) at [32]-[33].

10 Attorney-General v BBC [1981] AC 303 at 342-343.

11 Supra (note 6 above) at para 5.32.

12 Attorney-General v Wain Barry J [1991] 1 SLR(R) 85 at [38].

13 Supra (note 6 above) at para 5.2. 

14 [1965-1967] SLR(R) 748. 

15 Ibidd, at [21].

16 Ibidd, at [32]. 

17 Sui Yi Siong, “Sub judice contempt of court in Singapore and the need for clarification”, Singapore Law Watch Commentaries (Issue 2/Jan 2015) (available on LawNet).

18 Hindu Endowment Board website, “Guidelines for Thaipusam 2015”, para B3; available at: <http://heb.gov.sg/wp-content/uploads/2015/01/sspt_guidelines15.pdf> (accessed  25 March 2015). 

19 Ravi Philemon, “Music helped me during Thaipusam”, The Online Citizen (10 February 2015); available at: <http://www.theonlinecitizen.com/2015/02/music-helped-me-during-thaipusam/> (accessed 25 March 2015) and  V Balu, “Engage public to address concerns”, Asiaone News (12 February 2015) <http://news.asiaone.com/news/mailbox/engage-public-address-concerns> (accessed 25 March 2015).

20 See The Online Citizen (10 February 2015); available at: < http://www.theonlinecitizen.com/2015/02/thaipusam-incident-rhetoric-not-useful-in-promoting-race-relations/> (accessed 25 March 2015) and The Independent Singapore (8 February 2015); available at: <http://theindependent.sg/blog/2015/02/08/thaipusam-incident-statement-from-mohan/> (accessed 25 March 2015).

21 Attorney-General’s Chambers, Press Release, “Reminder on public comments regarding men charged with offences allegedly committed during a Thaipusam procession” (11 February 2015); available at: <https://www.agc.gov.sg/DATA/0/Docs/NewsFiles/REMINDER%20ON%20PUBLIC%20COMMENTS%20REGARDING%20MEN%20CHARGED%20WITH%20OFFENCES%20ALLEGEDLY%20COMMITTED%20AT%20A%20THAIPUSAM%20PROCESSION_11%20FEB%202015.pdf> (accessed 25 March 2015).

22 Channel News Asia (11 February 2015); available at: <http://www.channelnewsasia.com/news/singapore/agc-warns-against-public/1651170.html> (accessed 25 March 2015) and The Straits Times (11 February 2015); available at: <http://www.straitstimes.com/news/singapore/courts-crime/story/agc-reminds-public-refrain-making-comments-related-3-men-charged-t> (accessed 25 March 2015).

23 These statements were less than precise in their wording, as this author has pointed out in a previous article: see supra (note 2 above).

24 See Andrew Phang, “Jury Trial in Singapore and Malaysia: The Unmaking of a Legal Institution” (1983) 4 Mal L Rev 50. 

25 David Eady & ATH Smith, Arlidge, Eady & Smith on Contempt (LexisNexis, 4^th edition, 2010) at para 5-104 and 5-109. 

26 Cap 97, 1997 Rev Ed. 

27 Vinodh Coomaraswamy, “Evidence and Admissibility” in Elanor Wong (ed), Modern Advocacy (Academy Publishing, 2007) at paras 09.013-09.029. 

28 Wong Kim Poh v Public Prosecutor [1992] 1 SLR(R) 13 at [14] and Tan Chee Kieng v Public Prosecutor [1994] 2 SLR(R) 577 at [8]. 

29 Chan Sek Keong, “The Criminal Process – The Singapore Model” (1996) 17 Sing Law Review 433, pp 451 and 461.

30 Leslie Chew, “Relations with the Media” in Elanor Wong (ed), Modern Advocacy (Academy Publishing, 2007) at para 18.028.

31 Attorney-General v Times Newspapers [1974] 1 AC 273 at 310.

32 [2012] 1 WLR 2408. 

33 Public Prosecutor v Yue Mun Yew Gary [2013] 1 SLR 39 at [54]. 

34 See Howard Lee, “Possible legal action against those who harassed Mobile Air owner”, The Online Citizen (7 November 2014); available at: <http://www.theonlinecitizen.com/2014/11/possible-legal-action-against-those-who-harasses-mobile-air-owner/> (accessed 25 March 2015). 

35 See CJ Miller, Contempt of Court (OUP, 3^rd Ed, 2000) at para 7.108. 

36 Cap 290, 2013 Rev Ed. 

37 Cap 167A, 2001 Rev Ed.